Stubblefield's lawyers: Rape charge can't be believed because she lied about dancing nude online for money

By Tracey Kaplan, Bay Area News Group

Monday, February 5, 2018

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SAN JOSE — Lawyers for former football star Dana Stubblefield are demanding that bail be set in their client’s rape case because new evidence has emerged to support his claim that he paid the woman for consensual sex.

The 34-year-old woman, who prosecutors allege is “intellectually disabled,” testified during the preliminary hearing last month that the former linebacker for the 49er raped her at gunpoint nearly three years ago when she went to his Morgan Hill home seeking babysitting work. She denied under oath that she ever worked in the porn industry or received money for sex.

In a motion filed Monday, however, defense lawyers are seeking the reinstatement of $250,000 bail, claiming that they’ve discovered a 15-second video of her dancing in the nude, available to paying customers on a porn website.

"Since the preliminary examination, the defense has discovered compelling evidence that the complaining witness committed perjury,’’ lawyers Allen Sawyer and Ken Rosenfeld argue in bail motion, adding that the discovery is grounds to doubt her credibility.

They also contend it is unlikely anyone else created the account because the site requires a four-step process to sign up as a performer, including uploading photo identification and linking to a social media account, which they claimed she set up using a different user name than usual.

Prosecutor Tim McInerny called Monday’s bail motion a clumsy attempt at "victim-shaming.’’ Normally, a victim’s sexual history is not allowed in a rape trial.

"These guys are violating the rules of professional conduct,’’ McInerny said. He added that the woman was being truthful on the stand — because it appears that no one besides Stubblefield’s lawyers ever paid to see the video.

"Their claim is highly inflammatory and there’s a good chance it never enters the courtroom at trial,’’ McInerny said.

On Monday morning, McInerny petitioned a judge to immediately seal the bail motion. But Judge Jacqueline Duong denied it, ruling that the prosecution must file its response to the motion before she’ll consider making the matter confidential. McInerny has until early next week to file.

Last month, Stubblefield was led away from Santa Clara County Superior court in handcuffs after Judge Paul R. Bernal found there was probable cause to hold him over for trial. He had been free on $250,000 bail for more than a year. But McInerny formally added the allegation that Stubblefield used a gun during the assault, which made it a no-bail case.

In Stubblefield’s motion for bail, his defense lawyers claim that the woman’s "commercial sexual activity’’ is legally relevant because it corroborates their client’s account of the April 9, 2015 encounter. They also argue it casts doubt on her veracity, particularly since she has given what Bernal called "varied’’ testimony on the question of whether he threatened her with a gun — including that it could have been a cell phone.

She also gave testimony indicating that she had a limited understanding of the sexual anatomy, which they say the video and other photos on the site proves is not true.

Stubblefield has pleaded not guilty to five felony charges and the gun enhancement, which could lead to at least 15 years to life in prison if he is convicted of forcible rape, forcible oral copulation, rape and oral copulation of a person incapable of consent, and false imprisonment. But he would face only eight years in state prison if he is not convicted of using a gun to intimidate the woman.

The trial is set to begin in late March.

A central issue at trial will be whether the woman was capable of consenting to sex with Stubblefield, even if the jury believes she did consent.

Stubblefield’s lawyers argue in their motion that the woman’s ability to allegedly post the nude video is one of several signs she was able to decide whether or not to have sex with Stubblefield.

The defense team also noted what they consider to be other signs that her only handicap is a severe speech impediment: She has a California driver’s license with no restrictions, and has held several jobs, including at Safeway and delivering restaurant take-out for DoorDash. A defense expert also testified that the woman once scored 87 on an IQ test, which she said was impossible to fake. The prosecution notes she got a score of 70 at one point. The lower score means she’s cognitively impaired; the higher signals below average intelligence.

The lawyers also noted that the prosecution declined to use a report during the preliminary hearing from an expert who found she was capable of consent.

But McInerny has said he is pursuing a two-track strategy in the case. If Stubblefield jurors decide the woman was capable of consent, they could still convict Stubblefield on rape charges. But the prosecutor believes she was incapable.

"A person with an IQ of 70 who is capable of consenting under peaceful circumstances,’’ he has said, "can be unable to in highly stressful situations."

The rape allegations are the latest in a string of legal woes for the former NFL star. Stubblefield admitted to police he kicked his girlfriend while he was playing for the 49ers 20 years ago. He was arrested in 2000 on charges of assaulting his wife. In 2008, Stubblefield was caught in the Balco scandal, pleaded guilty to a felony and was sentenced to probation for lying to federal agents about his use of performance-enhancing drugs.

During his preliminary hearing in this case, a woman tearfully testified that Stubblefield sexually assaulted her in the backroom of a bar/restaurant in Capitola in 1996 after she asked for his autograph and he led her there. The woman, who never reported the incident to police, said Stubblefield had pinned her down on the ground and had his hands up her skirt and shirt when a busboy came in the room, at which point he stopped, cursed her and went back to the bar.